The High Court in Mzuzu has restored sections of the Labour Relations Act which brought handling of labour disputes in turmoil after the court’s assistant registrar Brian Sambo nullified them on February 12.
The court has since given the Attorney General (AG) seven days to file defence, meaning the case starts afresh, with the State being given a chance to be heard in the matter which the AG failed to defend, resulting in Sambo entering the default judgement.
High Court of Malawi and the Malawi Supreme Court of Appeal registrar Agnes Patemba confirmed the development in an interview on Friday, explaining that the judge handling the matter would give direction on how to proceed.
The court’s decision by a single officer to invalidate some sections of the Labour Relations Act that requires panellists representing employees and employers in all proceedings at Industrial Relations Court (IRC) ruffled some feathers in the legal fraternity, with the Judiciary leadership saying the judgement was erroneous.
After the purported erroneous judgement, and following intervention of the Judiciary’s top tier, the AG and George Kadzipatike, a private practice lawyer who is representing Aaron Kayira, filed a consent order before Sambo on Monday to have the default judgement set aside.
The court allowed the AG and Kadzipatike and proceeded to set aside the judgement—meaning restoration of the law which was declared unconstitutional, and therefore, null and void.
In the controversial default judgement, Sambo scrapped the sections in the Act that made it mandatory to have panellists representing employers and employees at IRC.
Kayira had applied for nullification of the law as he believes it infringes on his rights.
Sambo declared such laws unconstitutional and, therefore, null and void, ordering that from the day he issued his ruling, chairperson or deputy chairperson of IRC can proceed on their own to try and determine cases without the panellists.
The AG, who now has an opportunity to be heard in the matter, agreed in principle with the claimant on the necessity to remove the sections in question, arguing they delay matters at IRC and processes were underway to have them removed, but faulted the manner the case was handled.
Mhango had said any matter that challenges law requires certification by the Chief Justice (CJ) and it requires three High Court judges sitting as a Constitutional Court to handle it.
Kayira argued in the case that the composition of IRC violated his right to an independent and impartial court, considering that the panellists are appointed to perform their functions in the Judiciary by a member of the Cabinet (Cabinet minister) and throughout their tenure of office, their appointment and stay in office are under the pleasure of the minister.
“The inclusion of panellists in the composition of the IRC violates the independence of the Judiciary in that panellists are invariably on full-time employment in organisations other than the Judiciary, and the schedules of their full time employers affect the calendar of the IRC, which in turn affects the progress of the claimant’s action in the IRC.
“The Judiciary does not enjoy its separate constitutional status as an independent organ of the State in this respect and [my] right to access justice is unjustifiably limited due to the panellists businesses unrelated to the Judiciary,” he had argued.
He further argued the IRC chairperson are legally qualified persons capable of trying and determining the matters in the same way as magistrates who are allowed by law to sit alone.
When contacted, Malawi Law Society president Khumbo Soko said they do not have problems with the matter now that the proper procedure has been followed in setting aside the order. n